Supreme Court justices signal deep trouble for health care law

This artist rendering shows Paul Clement speaks in front of the Supreme Court in Washington, Tuesday, March 27, 2012, as the court continued hearing arguments on the health care law signed by President Barack Obama. Justices, seated from left are, Sonia Sotomayor, Stephen Breyer, Clarence Thomas, Antonin Scalia, Chief Justice John Roberts, Anthony Kennedy, Ruth Bader Ginsburg Samuel Alito and Elana Kagan.

WASHINGTON >> The fate of President Barack Obama's health care overhaul was cast into peril today as the Supreme Court's conservative justices sharply and repeatedly questioned its core requirement that virtually every American carry insurance. The court will now take up whether any remnant of the historic law can survive if that linchpin fails.

The justices' questions in today's hearing carried deeply serious implications but were sometimes flavored with fanciful suggestions. If the government can force people to buy health insurance, justices wanted to know, can it require people to by burial insurance? Cellphones? Broccoli?

The law, pushed to passage by Obama and congressional Democrats two years ago, would affect nearly all Americans and extend insurance coverage to 30 million people who now lack it. Republicans are strongly opposed, including the presidential contenders now campaigning for the chance to challenge Obama in November.

The court focused on whether the mandate for Americans to have insurance "is a step beyond what our cases allow," in the words of Justice Anthony Kennedy.

But Kennedy, who is often the swing vote on cases that divide the justices along ideological lines, also said he recognized the magnitude of the nation's health care problems and seemed to suggest they would require a comprehensive solution.

He and Chief Justice John Roberts emerged as the apparent pivotal votes in the court's decision. The ruling is due in June in the midst of a presidential election campaign that has focused in part on the new law.

Wednesday's final arguments — the third day in the unusually long series of hearings — will focus on whether the rest of the law can remain even if the insurance mandate is struck down and, separately, on the constitutionality of another provision expanding the federal-state Medicaid program.

The insurance requirement is intended to complement two unchallenged provisions of the law that require insurers to cover people regardless of existing medical conditions and limit how much they can charge in premiums based on a person's age or health.

The law envisions that insurers will be able to accommodate older and sicker people without facing financial ruin because the insurance requirement will provide insurance companies with more premiums from healthy people to cover the increased costs of care.

The biggest issue, to which the justices returned repeatedly during two hours of arguments in a packed courtroom, was whether the government can force people to buy insurance.

"Purchase insurance in this case, something else in the next case," Roberts said.

"If the government can do this, what else can it not do?" Justice Antonin Scalia asked. He and Justice Samuel Alito appeared likely to join with Justice Clarence Thomas, the only justice to ask no questions, to vote to strike down the key provision of the overhaul. The four Democratic appointees seemed ready to vote to uphold it.

Kennedy at one point said that allowing the government mandate would "change the relationship" between the government and U.S. citizens.

"Do you not have a heavy burden of justification to show authorization under the Constitution" for the individual mandate? asked Kennedy.

At another point, however, he also acknowledged the complexity of resolving the issue of paying for America's health care needs.

"I think it is true that if most questions in life are matters of degree ... the young person who is uninsured is uniquely proximately very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries. That's my concern in the case," Kennedy said.

Roberts also spoke about the uniqueness of health care, which almost everyone uses at some point.

"Everybody is in this market, so that makes it very different than the market for cars or the other hypotheticals that you came up with, and all they're regulating is how you pay for it," Roberts said, paraphrasing the government's argument.

Solicitor General Donald Verrilli Jr. sought to assure the court that the insurance mandate in the Patient Protection and Affordable Care Act that Obama signed into law in 2009 is a key part of the law's goal of reaching many of the more than 40 million people who don't have health insurance through their employers, don't qualify for government aid and cannot afford to buy coverage on their own.

Paul Clement, who is representing Florida and 25 other states in challenging the law, called the mandate "an unprecedented effort by Congress."

Clement, a predecessor of Verrilli's as solicitor general, said the requirement would force people, especially those who are young and healthy, to buy a product they don't want.

Michael Carvin, representing the National Federation of Independent Business in opposing the law, also pushed hard on the notion of individual freedom. When Justice Stephen Breyer asked if the federal government could not order vaccinations "if there was some terrible epidemic sweeping the United States," Carvin said no. Congress lacks the power to do so, he said.

Justice Ruth Bader Ginsburg said she found the debate over health care similar to an earlier era's argument about the Social Security retirement system. How could Congress be able to compel younger workers to contribute to Social Security but be limited in its ability to address health care? she wondered.

"There's something very odd about that, that the government can take over the whole thing and we all say, oh, yes, that's fine, but if the government wants to preserve private insurers, it can't do that," she said.

Scalia and Roberts noted that the health care overhaul law would make people get insurance for things they may not need, such as heart transplants or pregnancy services. "You can't say that everybody is going to participate in substance abuse services," Roberts said.

On the other hand, Ginsburg said, "The people who don't participate in this market are making it more expensive for those who do."

"You could say that about buying a car," Scalia retorted, noting that if enough people don't buy cars the cost could go up.

But, unlike cars, almost everyone eventually will be required to use the health care system, Verrilli said in defense of the law. Without health insurance, he said, "you're going to the market without the ability to pay for what you're going to get."

Members of Congress on both sides of the fight sat through today's arguments, along with Attorney General Eric Holder and Health and Human Services Secretary Kathleen Sebelius. Republicans opposed to the law in the audience included Senate Minority Leader Mitch McConnell of Kentucky, Sen. John Cornyn of Texas and Sen. Lindsey Graham of South Carolina. Also at the court were Democratic supporters including Sen. Pat Leahy of Vermont, Sen. Max Baucus of Montana and Reps. John Dingell and John Conyers, both of Michigan.

Demonstrators returned today to the sidewalk outside the Supreme Court, with more than 100 supporters of the law circling and chanting, "I love Obamacare." They carried signs reading slogans such as "A healthy America is a productive America" and ''Protect the law."

More than a dozen opponents held a news conference criticizing the bill.

Supporters, two of them wearing Statue of Liberty costumes, marched to music played over a loudspeaker. A trumpet player played "When the Saints Go Marching In" and "This Little Light of Mine," and supporters changed the lyrics to ones supporting the health care law.

One demonstrator opposing the law wore a striped prison costume and held a sign, "Obama Care is Putting the US Tax Payer in Debtors Prison."

Rep. Michele Bachmann of Minnesota, a former Republican presidential candidate, joined a tea party press conference of opponents of the law. Calling the law "the greatest expansion of federal power in the history of the country," she said, "We are calling on the court today: Declare this law unconstitutional."

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hybrid1wrote:

Republicans in SCOTUS no solution, just weak, irrelevant criticizm. The major reasons Obamacare will survive includes: ....1) Justice Ruth Bader Ginsburg said she found the debate over health care similar to an earlier age's debate about the Social Security retirement system. How could Congress be able to compel younger workers to contribute to Social Security, but be limited in its ability to address health care? she wondered..............................
2) On the other hand, Ginsburg said, "The people who don't participate in this market are making it more expensive for those who do."..........."You could say that about buying a car," (Republican) Scalia retorted, noting that if enough people don't buy cars the cost could go up..........But, unlike cars, almost everyone eventually will be required to use the health care system, Verrilli said in defense of the law. Without health insurance, he said, "you're going to the market without the ability to pay for what you're going to get.".................................
3) "I think it is true that if most questions in life are matters of degree ... the young person who is uninsured is uniquely proximately very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries. That's my concern in the case," Kennedy said.

on March 27,2012 | 12:27PM

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inversewrote:

If Obamacare is so great why are there 1400 waivers, and GROWING, to opt out of Obamacare? On top of which those allowed to opt out are all unions and others who have close ties to the Obama administration. How about the issue of personal responsibility. If someone voluntarily chooses to NOT have health insurance and then requires major health intervention, then that person and his/her family will be solely responsible to pay for that health intervention. If they cannot afford it, then sorry, their health intervention will be severely constrained. Problem with Obamacare is that in the end, some money helps those that need help but the majority of taxpayer funds would be wasted and/or diverted into someones or some groups personal pockets under the guise of administration overhead or outright fraud/abuse as seen currently in Medicare and Medicaid.

The Obama administration should clean up the current massive waste, graft and fraud in Medicaid and Medicare and use that money to provide help to the under and non-insured INSTEAD of creating a whole new Obamacare bureaucracy which will do more harm than good for those truly in need of assistance

on March 27,2012 | 02:19PM

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kuewawrote:

You talk big, but the reality is that nearly all Americans expect to receive medical care if they are ill, regardless of whether they have some way to pay for it. If your parents, children, spouse or whatever has a major illness or accident and has no insurance and no other way to pay, I don't think you and other family would just say "oh, too bad" and walk away. Instead, you would insist that someone give treatment, then all the costs for that treatment would have to be absorbed by the "system" -- including the hospital, doctors, other personnel-- and eventually fall back on the taxpayers. The mandate in the Affordable Healhcare Act seeks to solve this problem by making sure everyone shares in paying for this entitlement, either by applying for government programs, employer insurance or buying health insurance. The waivers are granted on the basis of having an alternate program that achieves the same goal; they are not granted to allow more leeches on the system to proliferate.

on March 27,2012 | 02:41PM

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CloudForestwrote:

There are so many better ways to spends 100's of billions of dollars! How about putting easy access clinics in every small town and have them purchase bulk generic drugs and have simple diagnostic machines on site? This would allow the folks with minor ailments or readily known ongoing helath maintenance issues to be treated simply, QUICKLY and with the lowest possible costs - what a concept! All without force and with the best interest of the people at heart.

on March 27,2012 | 04:00PM

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kuewawrote:

I'm not sure what your point is, but health cooperatives are allowed under the Affordable Healthcare Act; depending on the setup it might be a waiver. This does not eliminate the need for a mandate for everyone covered by the cooperative to buy into the system and share in covering the costs of the program or to prove that they cannot afford to contribute and therefore receive coverage through the contributions of others.

on March 27,2012 | 05:01PM

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CloudForestwrote:

The point is that 5,000 x $1M = $5B which would give us 5,000 small clinics for primary care, build them with government funds and lease them to private operators. Keep them small and build many of them. AND: Allow insurance to cross all state lines, and simultaneously get rid of the tons of paperwork that eat us alive.

on March 27,2012 | 05:14PM

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hybrid1wrote:

Republicans have no solution, just weak, irrelevant criticizm. The major reasons Obamacare will survive includes: ....1) Justice Ruth Bader Ginsburg said she found the debate over health care similar to an earlier age's debate about the Social Security retirement system. How could Congress be able to compel younger workers to contribute to Social Security, but be limited in its ability to address health care? ..............................
2) On the other hand, Ginsburg said, "The people who don't participate in this market are making it more expensive for those who do."..........."You could say that about buying a car," Scalia retorted, noting that if enough people don't buy cars the cost could go up..........But, unlike cars, almost everyone eventually will be required to use the health care system, Verrilli said in defense of the law. Without health insurance, he said, "you're going to the market without the ability to pay for what you're going to get.".................................
3) "I think it is true that if most questions in life are matters of degree ... the young person who is uninsured is uniquely proximately very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries. That's my concern in the case," Kennedy said.

on March 27,2012 | 12:35PM

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AmbienDazewrote:

Obamacare
We'll get to you when you're shovel ready.
i know, i know, i stole it from Greg Liautaud in WSJ. too funny to leave alone.

on March 27,2012 | 01:09PM

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keawewrote:

would illegal immigrants be required to carry health insurance under obamacare or be faced with penalties and fines?

on March 27,2012 | 01:33PM

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hybrid1wrote:

Verrilli said in defense of the law. Without health insurance, he said, "you're going to the market without the ability to pay for what you're going to get."....If SCOTUS rejects mandatory .insurance, then hospitalsshould have the right to reject treating your heart attack if you have no insurance. ............ Hospitals should have to right to confirm your insurance before they treat you, according to SCOTUS if they reject mandatory insurance. There is already a precedent, it's called mandatory social security, all workers must pay social security, no opting out................................

on March 27,2012 | 02:18PM

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inversewrote:

In the State of Hawaii, by law, if someone is experiencing a heart attack, all hospital emergency rooms must treat that person, regardless if they have insurance or not. Of course if the person survives and needs a heart transplant, that is a whole other issue. In life threatening situations, all Hawaii hospitals must treat that person regardless of insurance status. If that person shows up with something minor like a hang nail that is NOT going to kill that person, that hospital will ask lots of questions, including insurance status and the ability to pay for treatment before providing service.

on March 27,2012 | 02:40PM

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kuewawrote:

No, illegal immigrants are specifically excluded from the provisions of the act, and are also currently excluded from Medicare/Medicaid and other Federal government-supported medical coverage. The exception is life-threatening emergencies when humanitarian concerns take priority, but even these are usually billed back to the person who received the care (although probably not often paid in full). Of course, illegal immigrants and non-citizens can receive non-emergency care by paying for it in cash or private insurance. And yes, they are subject to the penalty of INS action and potential deportation.

on March 27,2012 | 02:48PM

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thepartyfirstwrote:

What is at stake is our Freedom and the Constitution! Don't be misled by the bias media.

on March 27,2012 | 02:39PM

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kuewawrote:

Our freedom to do what? Not have health care coverage and rely on everybody else's contributions to pay for our needs even though we could contribute? Or the freedom to be refused healthcare because we are not covered by any program?

on March 27,2012 | 05:06PM

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PMAwrote:

Sir Winston Churchill said it best,"Socialism is the philosophy of failure, the creed of ignorance, and the gospel of envy, its inherent virtue is the equal sharing of misery"!!! Now I ask you, what part of this do you not understand, hybrid1?

on March 27,2012 | 03:16PM

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CloudForestwrote:

One of the best replies ever! So many will willingly bow down and lick the hands that feed them ........ and then vote democrat of course!

on March 27,2012 | 03:56PM

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kuewawrote:

Sir Winston Churchill was a major supporter of the English National Health Service, a single-payer healthcare system which includes a universal mandate and has been the basis of the UK health system since the 1940's (modified over the years). While Churchill often spoke against the political aspects of Socialist philosophy, he recognized that certain aspects of a democratic society require a sharing of resources for the public good.

on March 27,2012 | 05:15PM

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kainaluwrote:

No surprises here. The Supreme Court isn't "supreme" at all, it's merely an extension of a political ideology - and in it's current make-up, a 5-4 conservative ideology. I speculate that the "law" will be shot down 5-4, I can name which justices fall on which side of that equation, it's the same 5-4 vote in 99% of their cases - again, merely an extension of a political ideology. Otherwise, so-called "Obamacare" is a noble attempt of making sure every citizen of the supposedly "great" nation of the United States be able to get healthcare, the only "Western" society that doesn't provide that for all it's citizens. I got coverage, but the cost definitely impacts my quality of life.

on March 27,2012 | 03:29PM

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kuewawrote:

I agree, although I'm still hoping that the Supremes will sidestep politics in this case. "Obamacare" is an amazingly comprehensive plan to provide universal healthcare. However, it's unfortunate that a single-payer system and/or public option was not included to more effectively address the cost of care. This type of provision was voted down by members of both parties under the influence of the health insurance lobbies.

on March 27,2012 | 05:50PM

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CloudForestwrote:

obamacare = The Hunger Games. This is the exact opposite of what our forefathers bled and died for, Life, Liberty and The Pursuit of Happiness. This extreme government dictate and manipulated power grab would enslave us slowly but surely ......... it is wicked and can not be allowed to remain law, for if it does then we all become wards of the state and eventually will be their "tributes". An I will never be their tribute and there are many many many many like me all across this great nation.

on March 27,2012 | 03:54PM

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Hapa_Haole_Boywrote:

If I don't want to buy health insurance, and I live in: (1) a communist/socialist nation, then I must buy it regardless, or (2) a free market, capitalistic society, then I do not have to buy it. We currently have the latter situation; Obamacare would put our nation in the former situation. Our forefathers lived, fought and died to no end to give us the latter; and we all must do what is necessary to protect that nation. Thus, Obamacare must fall to protect our nation from becoming a communist/socialist nation, and to preserve what our forefathers created. Nothing more needs to be said.

on March 27,2012 | 05:13PM

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kuewawrote:

NO society is purely socialist, communist, capitalist, free market, or any other such label. Within every society, there are trade-offs to protect the overall interests of society. Taxes, compulsory education, drinking laws, driving restrictions, etc. are all concessions that we make to live in a productive society. Healthcare is already a shared responsibility in the US, but the costs are unequally shared and controlled. Everyone expects the same access to medical care, but not everyone that can pay into the system is doing so. On the other hand, many poor people are not covered and create unexpected costs. By mandating universal coverage, the Affordable healthcare act creates a better mechanism for controlling costs, while ensuring that everyone retains equal access.

on March 27,2012 | 05:37PM

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CloudForestwrote:

No matter how this is packaged, it's un-American and smacks of extraordinary power gathered into a bunch of technocrats hands. Count me out, either by deed or by vote. This "system" would outright kill my father - he walked across Omaha Beach (for his first purple heart) and then endured The Battle of the Bulge (his second purple heart) - so anything that would have that "result" coupled with such a "power grab" can not be allowed to stand.